Development

In landowner’s article 78 proceeding challenging denial of a use variance, landowner appealed from Supreme Court’s denial of the petition. The Appellate Division reversed and remanded for grant of the petition, holding that landowner had established entitlement to the variance under the standard applicable to public utilities.
In 2016, landowner bought two parcels in a rural residential zoning district for the purpose of building a solar energy generation facility. The following year, the town adopted a local law that prohibited solar facilities in all zoning districts except commercial and industrial zones. In 2021, landowner applied for a use variance, which the zoning board of appeals (ZBA) denied. Landowner then brought an article 78 proceeding. Supreme Court concluded that the ZBA had incorrectly applied the variance standard articulated in Town Law 267-b(2)(b), rather than a standard that requires a public utility to prove only the necessity for the variance. On remand, the ZBA concluded that landowner did not meet the public utility standard, and Supreme Court upheld that determination. Landowner appealed.
In reversing, the Appellate Division emphasized the state legislative objective of transitioning to renewable energy, particularly solar energy, and concluded that landowner had established the public necessity for the project, especially in light of the minimal impact the project would have. The court also noted that landowner could not move the project elsewhere because the local gas and electric company’s maps had indicated that there was no capacity for a project of similar size in zoning districts where the project would be a permitted use.

COMMENT

New York law provides a relaxed variance standard for public utilities, exempting them from the traditional statutory standard under Town Law § 267-b(2)(b), which requires proof of unnecessary hardship. Public utilities must instead demonstrate that a project is necessary to provide adequate service and that no feasible alternative locations exist. This standard originates from Matter of Consolidated Edison Co. of N.Y. v. Hoffman, 43 N.Y.2d 598 (1978), where the Court of Appeals upheld a variance allowing Consolidated Edison to construct a cooling tower exceeding local zoning height restrictions. The Court emphasized that municipalities cannot use zoning laws to obstruct essential utility services. The exception was extended to telecommunications providers in Matter of Cellular Tel. Co. v. Rosenberg, 82 N.Y.2d 364 (1993), where the Court annulled a zoning board’s denial of a variance for a cell site, holding that necessity, not financial hardship, should govern variance decisions for essential services.
Although in the vast majority of cases involving public utilities courts have held the utilities entitled to variances under the relaxed standard, at least one court upheld denial of a variance where the board found that the impact of the proposed use on the community was significant. In Cellco Partnership v. Bellows, 262 AD 2d 849, the Third Department upheld denial of a variance to construct a 120 foot cell phone tower, citing the board’s conclusion that the tower was inconsistent with the residential character of the neighborhood. The court cited Consolidated Edison and Cellular Tower, but found “without merit” the assertion that the application “qualifies for the subject variances under the diminished standard applicable to public utilities.